Speaking notes for an appearance before the Standing Senate Committee on Official Languages

Ottawa, Ontario, April 3, 2017
Ghislaine Saikaley - Interim Commissioner of Official Languages

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Senators, members of the Standing Senate Committee on Official Languages, good evening.

I would like to thank you for inviting me to speak to you today as Interim Official Languages Commissioner. I am accompanied today by Mary Donaghy, Assistant Commissioner of Policy and Communications, Pascale Giguère, General Counsel and Jean Marleau, Acting Assistant Commissioner of Compliance Assurance.

I would like to take this opportunity to mention that my team and I are always available to answer questions from parliamentarians, even during this transition period.

If I may, I would like to start by briefly addressing the dispute we are facing with the Courts Administration Service (CAS), and then conclude by discussing the legislative changes that we are proposing regarding Air Canada. In both cases, the Office of the Commissioner has taken the exceptional measure of addressing Parliament directly in order to resolve a stalemate that has persisted after all other approaches provided by the Official Languages Act have been exhausted.

The Courts Administration ServiceFootnote 1

Last fall, Commissioner Graham Fraser tabled his report to Parliament on our investigation concerning the Courts Administration Service. This report followed our April 7, 2016, report to the Governor in Council.

The core of the conflict concerns the posting of decisions on Federal Court websites. Often, decisions are not posted in both official languages at the same time. In fact, it can take many months for a decision to be published in the other official language.

We started our investigation into this situation in 2007. Ten years later, complaints continue to be filed. The institution is of the opinion that the publication of decisions on websites falls under Part III of the Act on the Administration of Justice, while our position is that this issue pertains to Part IV, which concerns the linguistic obligations of federal institutions in terms of communications with the public.

Numerous discussions with the institution have failed to resolve the dispute. Our 2015 final investigation report concluded that the CAS was still in breach of the Official Languages Act. The institution did not act on our recommendation to take measures that would enable them to publish decisions simultaneously in both official languages. This issue therefore requires greater statutory clarification. I hope that the Standing Senate Committee on Official Languages will see fit to recommend that the government draft a bill to clarify the linguistic obligations of the federal courts in this regard.

I would now like to move on to Air Canada.

Air CanadaFootnote 2

As you know, on June 7, 2016, Commissioner Graham Fraser tabled a special report before the Senate and the House of Commons entitled Air Canada: On the road to increased compliance through an effective enforcement regime.

This report describes the measures taken by official languages commissioners over the years to obtain Air Canada’s full compliance with its language obligations under the Official Languages Act.

It also sets out options that would enable Parliament to modernize the enforcement scheme for Air Canada in order to fill certain legal voids that have existed since Air Canada’s major restructuring in 2003–2004.

Finally, the report contains only one recommendation addressed to Parliament—to refer the report to either of the standing committees on official languages for review.

Air Canada has been subject to the full scope of the Official Languages Act for nearly 50 years, first as a Crown corporation under the first Official Languages Act, and then under section 10 of the Air Canada Public Participation Act after the airline was privatized in 1988.

Since its privatization, Air Canada has gone through many financial and commercial transformations. However, as a national airline that was built with public funds, Air Canada must reflect the bilingual nature of the country and continue to meet its official languages obligations.

Of all the institutions subject to the Act, Air Canada is and has always been among those that generate the largest number of complaints processed every year by the Office of the Commissioner of Official Languages.

With respect to service to the public, a number of our investigations have shown and continue to show that in-flight and on‑the‑ground services are not always of equal quality in both official languages at all points of service and on all bilingual routes. Some of these infractions concern routes on which providing bilingual service would seem to go without saying, like Montréal–Bathurst, or Toronto–Québec City. Despite the passing years and repeated measures taken by all commissioners of official languages, the situation has not changed much.

After hundreds of investigations and recommendations, after an in-depth audit and two court cases—including one that went all the way to the Supreme Court of Canada—it is now up to Parliament to make the necessary legislative changes.

The report also addresses the fact that other legislative changes are also necessary. From 2005 to 2011, four bills were introduced to resolve the enforcement issues caused by Air Canada’s restructuring in 2003–2004. Unfortunately, all of them died on the Order Paper.

Therefore, the report proposes to amend the Air Canada Public Participation Act in order to uphold the language rights of the travelling public and of Air Canada employees in light of the airline’s current structure.

It also proposes four options for amending the Air Canada Public Participation Act that would modernize the enforcement scheme for Air Canada.

First, give the Office of the Commissioner the authority to sign binding agreements with Air Canada. The Privacy Commissioner already has this authority. This enforcement method is not sufficient in itself, but it would support other measures.

Then, it would be possible to give the Federal Court the power to order Air Canada to pay legal damages.

Alternatively, the Air Canada Public Participation Act could be amended to set out fines for specific infractions. The Access to Information Act and the Lobbying Act already contain such provisions.

Finally, Air Canada could be subject to administrative monetary penalties for linguistic infractions. It is already subject to this type of penalty from the Canadian Transportation Agency, the Canada Border Services Agency and the Competition Tribunal.

I feel that a more rigorous enforcement scheme for the Official Languages Act that is better adapted to Air Canada’s reality would be a more effective indicator of success.

Thank you.

I would be happy to answer any questions you may have.


Footnote 1

Office of the Commissioner of Official Languages, Report to Parliament of the Commissioner of Official Languages on the investigation into the Courts Administration Service under subsection 65(3) of the Official Languages Act, Ottawa, November 2016. On-line version consulted March 16, 2017.

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Footnote 2

Office of the Commissioner of Official Languages, Special Report to Parliament – Air Canada: On the road to increased compliance through an effective enforcement regime, Ottawa, June 7, 2016. On-line version consulted March 16, 2017.

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